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ADDRESS 



SOOIA.L FESTI^A^L 



OF 



THE BAR 



OP 



WORCESTER COUNTY, 



X^-A.SS-A.Oia:-CJSETTS, 



FEB. 7, 1856 



HON. EMORY WASHBURN 



WORCESTER: 

PRINTED BY HENRY J. ROWLAND, 
246 Main Street. 



r /A, 



SenrM tuUemowh 



Worcester, Feb. 22, 1856. 
Hon. Emory Washburn, 

Dear Sir : — As Chairman of the Committee of Arrangements for 
the recent Festival of the Bar of the County of Worcester, and in pursuance 
of a vote of the Bar, I am instructed to tender you " Their sincere thanks, 
for your valuable, interesting, and eloquent Address, delivered on the oc- 
casion, and to request a copy of the same for publication." 
Very Respectfully Yours, 

IRA M. BARTON. 



Worcester, March 1, ISoG. 
Dear Sir : — In complying with the request contained in your note of 
the 2Sth ult., I am performing a pleasant duty, rather than following any 
personal wish to give publicity to the address. 

The memorials that a lawyer is ordinarily able to leave of his efforts at 
the bar, are necessarily brief. The arena upon which his powers- are exer- 
cised, is removed from public observation, and some of the noblest exertions 
of the human intellect have been spent in determining questions of private 
right, to be forgotten with the occasion that called them forth. If, therefore, 
my brethren have furnished me an occasion to collect some memorials of 
those who have heretofore filled places at the Bar, and are willing to give 
them a more permanent form than the entertainment of a festive hour, I 
do not feel that I have a right to decline the request. 
I am, Very Respectfully, 

Your Ob't Serv't, 

EMORY WASHBURN. 
Hon. IRA U. BARTON, Chairman, .j-c. 



A-DDRESS. 



I am to speak this evening of the Law and iU proyress, 
and of this Bar and its changes, during the last twenty-five 
years. 

Measured by the experience of a life, how large is the 
space which that period occupies ! 

Of all those who filled the places we occupy, twenty-five 
years ago, how few are here to night, to share in the remi- 
niscences which it is designed to awaken. And what a grave 
has been opened and closed over bright hopes, generous as- 
pirations, and stirring ambition, in the solemn experience of 
these few brief years. 

What a change have they wrought in the individual man ! 
The stout frame has been bowed, the flowing locks have 
been bleached and scattered, the beaming eye clouded and 
dimmed, the gladsome spirits saddened, and the shadows of 
coming evening grown fearfully long, as the lingerer stops 
in his lonely walk, and looks around in vain for some once 
familiar companion of his earlier days. 

They found a young man full of hope, they have made 
him an old man full of experience. 

But if we contemplate this period in contrast with the 
life of the Common Law, of whose history it forms a most 
important chapter, it dwindles to the measure of a moment's 
space. 

The origin of that system is indeed so distant, that the 
long vista of ages, through which, alone, the mind can re- 



gard it, blonds in its perspective, the hues of truth and 
error, like the melting of the dim outline of the blue ocean 
with the bluer sky, when we look out upon its waters, as 
they sleep in the stillness of a summer's twilight. 

I go back in my research, to the day when Rome was 
gathering" up her giant limbs to die, and left the few and 
scattered fragments of her imperial institutions, like the 
relics of half legible inscriptions, and old imperishable stone 
work, on which the eye of the antiquary reads the tale of 
the five centuj'ies of Eoman power and glory in that island. 

I trace the slow and silent growth of institutions, which 
through another period of six hundred years, were springing 
up. under the rule of a rude people, and I pause to admire 
the sturdy independence, so nearly approaching to freedom, 
of the Saxon, while I read the simple but wise ordinances 
of Ina and Alfred, and listen to the counsels of their Wit- 
tenagemot — the future Parliament of Great Britain, and 
mark the tir.-it rough outline of that form of trial, which 
has since protected so many against the power of the oppres- 
sor, by the majesty of a Juror's oath. 

And, as I contemplate this broad, deep-laid, rough foun- 
dation of Saxon law, I see planted and rising upon it, that 
stupendous fabric of Feudalism, which the Norman conquest 
brought with it as the element of its power and its perpe- 
tuity. The Baron's castle, in the midst of his broad domain, 
is frownino; over the hut and cottao;e of his vassal and his 
serf. The mitred Bishop keeps the conscience of the King, 
and is stealing in upon the frank and manly doctrines of 
tlie English law, with the subtle and artful inventions of 
the church, wliilo tlie monarch is himself waging an unequal 
contest ngainst the ascendency of the Pope on the one hand, 
and a storm of domestic faction with his Barons on the other. 

I see tlioso Barons gathering at Runnymede, and among 
tlie menun'alde records of what tliose stern old warriors 
1 bought anil did there, I read as a concession wrung from 
royal fear, but treasured forever after in a nation's heart, 



the development of that great element of personal right 
and private justice — " NuUi vendiinus nulli negabimus, aut 
c?/^remMS, justitiam vel rectum." 

And as we recall that scene in fancy, and the thought 
flashes across the mind that some gifted spirit among those 
men of iron nerve, may, with prophetic vision, have read 
that memorable declaration, as we may now, engraved upon 
the seal of a Court of Common Law, presiding over the 
civil rights of a million of Freemen, with a wisdom and 
learning of which the pages of Glanville and Bracton fur- 
nish but barren rudiments, — in a land which even fancy had, 
till that moment, never conceived, the whole comes back 
upon the imagination, as a spectacle of moral grandeur, 
compared with which the by-play of war sinks into insig- 
nificance. 

I trace, still onward, that course of events, which, infus- 
ing new elements into the body of the law, changes not 
only the relations of property, but the very ideas of social 
duties and political rights. 

The cunning shrewdness of the clergy has substituted 
under the guise of " Uses " the superstitions of a vitiated 
conscience, for the plain, homely precedents of feudal sim- 
plicity, cheating alike the crown and the Lord of their 
cherished prerogatives, and gathering into the granary of 
the church the best fruits of the English soil, in spite of 
charter and of statute. 

There is something even dramatic in witnessing this strug- 
gle, — sturdy, English doggedness triumphing over priestly 
cunning. Parliament has met at Merton. The Bishops are 
seeking to introduce their own canon law, and are ready, in 
order to accomplish it, to minister to the passions and vices 
of the impulsive Barons- But the appeal is vain. In terms 
which could not be mistaken, and in words which will be 
read with admiration in after days, they tell those ambitious 
churchmen, **^nolumus leges Angliae mutare," and England 
and her institutions are English still. 



I pass over another period of four hundred years — A long 
and severe struggle has been going on, the anathema of the 
Pope, and the thunder of the Vatican have lost their terror. 
Interdict and Excommunication can no longer clothe a 
people in sack-cloth. And the prestige of royalty itself 
has ceased to dazzle the eye of a fickle multitude. A Ple- 
bian Parliament has laid sacreligious hands upon the Lord's 
anointed. 

But Law has been, during all this time, silently gaining 
strength and consistency in the kingdom, and the people are 
beginning to learn that without rules to guide and check 
their rulers, the rights of the citizen can never be secure. 

And when, at last, that feeling of an Englishman's Loy- 
alty, which had been cherished by the teachings of a thou- 
sand years, triumphed over the party of freedom and fanat- 
icism. Liberty was found asserting her claims in behalf of 
private right, and personal security against power and pre- 
scriptive wrong. At one blow. Chivalry and Knight service, 
under whicli the tenant of every manor in England had 
been groaning for six hundred years, were laid prostrate, 
while that single engine of magic power, the Huheas Corpus 
Avas placed within the reach of the humblest citizen, and at 
its touch the bars and bolts of the deepest dungeon gave 
way^ and the fetters of the oppressor fell broken from the 
limbs of his victim. 

As we come down from this eventful period, our pathway 
grows luminous and clear in the light ot" Judicial learning. 

The struggle between prerogative and the people, between 
the crown and the priesthood, has passed and is passing 
away, while the cumbrous frame work of antiquated iorms 
is giving place, in the study of the jurist and the statesman, 
to the vitalizing principles of social advancement and indi- 
vidual right. Commerce and Trade are fixing more firmly 
their marts in the growina: cities of the kino-dom, and thrift 
is rewarding the enterprise of toiling industry. 

The Common Law, in the mean time, has kept pace with 



the changes that are thus going on, and has expanded to 
meet the unaccustomed wants of a community, no longer 
confined to the culture of the soil. 

Under the guidance of her great masters, her Holts, her 
Blackstones and her Mansnelds, she has added to her prim- 
itive elements, what she has gleaned from the systems of 
continental Europe, and especially from the great store house 
of Eoman Jurisprudei:ce, the elements of symmetry and 
consistency which adapted to the condition of a commercial 
people, the rugged relics of feudalism and the business of 
arms and agriculture which still give character to her laws, 
and form the basis of her constitution. 

The heretofore rival systems of law and equity, have 
learned how to blend and harmonize with each other, under 
the administration of the Hardwickes and Camdens of the 
time, till a system of Jurisprudence has grown up and be- 
come incorporated into the constitution of the government, 
surpassing that of Eome in the brightest days of her glory. 

Fifty years more in the history of the English law, and 
we find ourselves at the commencement of the period to 
which I am limited in what I am to say this evening. Yet 
brief as is this little space on the great chart of English 
history, I am greatly misled or we shall find that more has 
been accomplished in changing some departments of the 
law, and in fitting and adapting the great body of its prin- 
ciples to the practical wants of the community, than had 
been efiected in either, if not all the antecedent periods of 
which i have spoken. 

Those periods had been either too dead for action, or too 
full of struggle, as it were, for life itself, to allow the action 
of great minds, such only as can work out great problems 
of reform, in a field so uninviting as the details of admin- 
istering private justice. The public mind was too much 
engrossed to heed the absurdities and inconsistencies which 
deformed the patch-work systems of local customs, ancient 
usages, and statute expedients, which made up so much of 
the existing body of her municipal institutions. 



The first and earliest of those periods can hardly he said 
to helong to the historic age of the law. 

The elements of society were being shaped into the form 
and consistency of the state. But the extent to which the 
masses had rights to be protected, or, that they should he 
provided with remedies for private wrongs, beyond some- 
thing like a domestic police, seems to have entered but 
feebly into the spirit of its rulers or its laws. 

In the next era, we see little more than a long, doubtful, 
three-sided struggle between the Crown, the Barons, and 
the Church, in whose alternate successes, the people came in 
for a meagre share only of whatever was gained by either 
side. A strong national feeling was growing up among 
them, it is true, but it was, after all, a period of struggle 
between masters, in which the people were chiefly passive 
and their rights unheeded. 

Nor was it till the spirit of inquiry which the Eeforma- 
tion awakened, had infused life and energy into the torpid 
action of the popular mind, that the great third estate — the 
Commons of England — learned how to measure the power 
they afterwards wielded. 

It would be pleasant to pause in this rapid review, on 
what was achieved for the cause of popular right during 
the Commonwealth and at the Eestoration, and especially 
in the so-called Eevolution of 1688, when the hallowed 
sanctity of royal prerogative gave way before the storm of 
popular indignation. It would be pleasant to trace how the 
learning and independence of Coke, the profound sagacity of 
Bacon, the mild virtues and uncompromising integrity of 
Hale, and the varied labors of the patriotic, and upright 
Somers, became inwrought into the science of the Common 
law, while Courts and Juries were gaining that independ- 
ence which was at last guarantied to the Judges of England, 
by the act of William 3d. And it would be no less inter- 
esting to trace how questions of personal rights, and rights 
of property, at last, became the engrossing business of the 



9 

courts, in place of what should be the limits of prerogative, 
the jurisdiction of rival courts, or by what means the power 
of a papal hierarchy should be disarmed of its terror. 

It should be borne in mind that the commercial spirit of 
the last century was engrafted upon the landed interests 
of England, for the regulation and preservation of which 
so much of the Common Law had come into existence. And 
the facility with which these were blended into a common 
system, and administered by the same courts, is but another 
illustration of the wonderful adaptation of that Common 
Law, to the wants and condition of a nation made up of 
men in all the walks and employments of life. 

When, therefore, the attention of the leading minds in 
the kingdom had been withdrawn from the political excite- 
ments, and the almost continuous wars in which the nation 
had been ensas'ed for more than a generation, it is not sur- 
prising that it should have been directed to the incongruous 
materials of which the Common Law was composed, — the 
customs and forms of the days of the Henrys and the Ed- 
wards registered upon the same page with the broad cos- 
mopolitan jurisprudence of an era of arts, and commerce, 
and navigation. 

Among these stand prominently the names of Eomilly 
in the department of criminal jurisprudence, and of Brougham 
in the various other departments of the law, as the reform- 
ers of the present century. 

Those who are familiar with the changes which have ac- 
tually been accomplished in England during the last twenty- 
five years, will be ready to accord to it the character of the 
great age of English legal and judicial Reform. 

Indeed, so rapid and important have those changes been, 
that it was stated by a writer in Blackwood, that when, re- 
cently, one of the leading lawyers at the Queen's Bench 
proposed to republish Blackstone with corrections and addi- 
tions that should adapt the work to the present state of the 
law, it was found that, with the exception of the first vol- 



10 

ume, the identity of the work would bo destroyed, and the 
proposal was abandoned after the publication of a single 
volume. 

Neither good taste nor your patience would admit of my 
dwelling upon these at large, and I can therefore name only 
a few. Among these, Fines and Eecoveries, the long toler- 
ated farce of feigned issues, fictitious parties and false rec- 
ords in a ffrave court of Justice, are forever abolished. 
Conveyances of land have been stripped of their useless 
verbage, and rendered simple and intelligible. The mystic 
subtilties of lineal and collateral warranties, no longer puz- 
zle the brain of the lawyer. The forms of more than fifty 
actions at the common law have been expunged. Volumes 
devoted to points as nice as the line between the north and 
northeast side of a hair, upon the interest of witnesses, 
have been rendered pointless by opening the witness stand 
to the very parties themselves. So far has this measure of 
reform been carried, that the very bones of Fitzherbert, and 
Saunders, and Booth, and Kastal must have stirred in their 
graves as tlio sacreligious hand was laid upon one after an- 
other of the beauties and romances of real actions, and special 
pleading, — upon the" Quihm" and the "Post," the " Ayel/' 
and the '^ Besayil," the '^ Traverse,^^ and the ^^ giving color " 
and their places supplied with English terms and English 
common sense. 

Nor was this accomplished without many a sigh from the 
living old school conservatives of the day. When at last it 
was seriously proposed to abolish " contingent remainders," 
— the very poetry of legal abstractions — one of this class 
is said to have exclaimed " abolish contingent remainders ! 
Why not repeal the law of gravitation '?" 

The quaint rubbish that had gathered around the body 
of the common law, in the progress of a thousand years, 
like the sea weed and barnacles that ffrow and (dina* to the 
bottom of a noble frigate, was scraped off by the hand of 
reform, till courts and the popular mind have begun to sym- 



11 

patliize with each other in the new revelation, that the ends 
of justice had better be sought for, than its antiquated forms 
and machinery preserved. 

When we consider what has been accomplished in England, 
since 1828, when Lord Brougham made his first great speech 
upon the necessity of legal reform, we shall find that it has 
not been limited to matters of form and detail alone. It 
has pervaded, the spirit of English Jurisprudence, embracing 
alike the interests of commerce and the arts, while it has 
moulded and fitted these to the prescriptive rights of birth, 
and the I'ents and. burdens of the tenantry of the soil. 

It is a green and vigorous life springing out of and sus- 
tained by the firm old buttresses which were reared by Titan 
hands away back in the obscurity of ages. 

Around the walls of that old Abby — old almost as the 
Common Law itself — within whose aisles, the portrait statue 
of Lord Mansfield holds an honored place among monu- 
ments of kings and nobles, of statesmen and poets, and 
heroes, the green and glossy ivy has twined itself into a 
shroud of living verdure. But there is a principle in its 
very growth that endangers the stout old fabric to whicli it 
clings. The fibres and tendrils of its roots seai-cli out every 
softening and decaying particlej every crack and scale in 
the stone work of which it is composed, and with almost 
magic power loosen and eat out the very walls themselves, 
so silently, yet so irresistibly, that new materials are con- 
stantly being supplied to preserve it from a slow but certain 
decay. 

Such is the care and skill, the wisdom and foresight, which 
are perpetually demanded in an age of change, and a vig- 
orous parasitacal growth to preserve that venerable fabric 
of the Common Law, in which are found so many noble 
monuments of past ages, and such rich treasures of consti- 
tutional liberty and personal right. 

It is a matter of state, and even national pride, that 
while the mother country is striving to adapt her laws, in 



12 

respect to personal rights, and her forms of attaining private 
justice, to the wants of her citizens, she has, perhaps un- 
consciously, copied so largely from the simple laws and cus- 
toms of these, her off-shoot republics. 

When, therefore, we turn to the records of our own com- 
monwealth, during the same period to which I am limited, 
we may indulge something like a feeling of gratified self- 
love to see how little occasion there has been for anything 
like a radical reform here. 

That we have seen changes it is true, but profound as is 
presumed to be the wisdom of our legislatures, it may, in 
the end, be discovered that even leo;islative change is not 
always improvement or reform. 

And, if ] might look abroad for illustration, I might ven- 
ture to doubt the successful working of a system which 
makes the popular voice the criterion of judicial fitness for 
oflice. 

It will be long, I fear, before we shall see a Kent, or a 
Livingston, or a Spencer, rising out of that bubbling cauldron 
whose ingredients are to be supplied from time to time by 
the popular passions of Whigs or Eepublicans, of Hard 
shells and Soft shells, of Know nothings and Know some- 
things, as they one after the other snatch at the spoils that 
feed their patriotism. 

Bat witliout anticipating what are to be the fruits of re- 
form here, let me pay at least this tribute to the present 
and the past. 

For many years the business associations of my life have 
been with the courts of Massachusetts, That feeling of 
respect, almost of awe, with which I first looked upon the 
venerable men who then graced these seats of justice, has 
hardly lost the freshness of association by familiarity. 

Of the changes that have taken place in the incumbents 
of the highest of these, it may not be delicate for me to 
speak individually on this occasion. But while I speak of 
the past, in paying a humble, but just tribute to the courts 



13 

of our own coin mon wealth, I might extend ray reinarks to 
otlier courts, state as well as national, whose presence and 
learninc; I have been permitted to witness. 

The feelings of veneration with wliich an American Law- 
yer first enters the courts of Westminster Hall, are partly 
traditionary, and partly the result of the associations and 
circumstances by which ho finds himself sniTounded, 

Those who have read, and who has not? the sketch of 
Warren Hastings, by Maccauly, will at once recall his magni- 
ficent description of the scene of the trial of his impeachment. 

That glorious old Hall, built by William Eufus, the scene 
of so many of the great events in English History, two 
hundred and seventy feet in length, and ninety in height, 
without a column or pillar, or any thing to break the eftect 
of its imposing gothic proportions, serves as a vestibule to 
the respective apartments, in which these courts are held. 

But for the mind, already excited by the recollection of 
events connected with the history of the hall, throuo-h 
which he has just passed, there is nothing to awaken an 
emotion in the style or magnitude or decorations of the 
pent up quarters into which these courts are crowded. 

He is, however, any thing but to be envied, who can stand 
in the conscious presence where Coke, and Hale, and Mans- 
field, and Ellenboro have sat in judgment, and Dunnino', 
and Wedderburn, and Erskine, and Follet have pleaded, 
without feeling awed by the very genius of the place. 

Pardon the seeming egotism, if I say, it was the first 
object I sought in that vast metropolis, and the spot to 
which I directed my daily walk, with feelings like those of 
a pilgrim at the shrine of his devotion. 

I looked upon that array of Judges in their robes of office, 
and I heard them addressed as "Your Lordships" by titled 
Barristers, and Crown officers among the leadino- men in 
Parliament, with a profound respect that was not all as- 
sumed. I saw members of these courts j^residing over trials 
at Nisi Prius, in causes which enlisted some of the first tal- 
R 



14 

ent in the laud. And I felt more than I could utter, as I 
stood within those precincts, where the associatious of the 
past mingled with the emotions which novelty and the im- 
posing dignity of the scene could not fail to awaken. 

But when I came to analyze this spectacle, to lay aside 
for a moment the adventitious decorations and historic asso- 
ciations — to regard only the men of whom the bench was 
composed, grave, learned and reverend as they were, and to 
listen to their occasional remarks, and their more elaborate 
opinions, it seemed to me, that for true dignity, high judi- 
cial bearing, quick apprehension, patient attention, and seem- 
ing impartiality, we need not go to Westminster Hall for 
better models than we may find at home. 

Without undertaking to compare the present condition of 
the Bar of Massachusetts, with what it once was, it is safe 
to affirm that a system of educational training, of prac- 
tice and of professional intercourse and deportment, which 
reared and fitted the men who have honored these seats of 
. Justice, should be approached with some distrust, at least, by 
him who should seek to revolutionize or reform it. 

And yet, the attempt to do this has been ruthlessly made 
more than once, within the recollection of some of us, and a 
radical change has been thereby wrought in the constitution 
and preparation for the Bar, Instead of the period of three 
or five years novitiate, which was once required before enter- 
ing the outer courts of the sanctuary of the profession, and 
tarrying in that middle ground, between hope and fruition, 
for two years, and yet another two years before donning the 
robes, and title, and privileges of a " Counsellor," he now 
starts " from the rough," and in two short years, by the 
polishing process of what goes by the name of an " exami- 
nation," comes out the fit companion and associate of the 
very sages of the law. 

And what must strike the uninitiated as something like 
a solecism, the more books there are to read, the less is the 
time necessary for the task. The more the relations of 



15 

business and society become multiplied and complicated, the 
more quickly are they mastered, and the higher the de- 
mands for scholarship, learning and mental discipline in 
the profession, the less the occasion to acquire either, before 
entering it, and claiming its honors and its rewards. 

We witness as the fruits of one branch of this reform, 
the scattered and uncared for county libraries of which the 
excise, cheerfully contributed by the older members of the 
bar, had laid a creditable foundation. But I leave the 
memory of such a reformer to the blessings of him, who, 
after seeking in vain in the place where it should be, the 
volume, always the missing one, which he most needs, plods 
back to his office and recalls the cause of his disappointment 
and his fruitless search. 

And yet, there have been changes during this period in 
some of the details of our legal system, which many were 
disposed to regard as veritable reforms. All of us have 
read of the beauties and charms of special pleading, which 
drew forth from my Lord Coke, among others, such high 
and frequent eulogiums. With him, words were, literally, 
things, and " placitum a placendo," — to plead well and to 
please well, were, in his mind, an obvious synonym. 

But to a layman who has never mastered this refined 
system of the keenest logic, I fear it would be useless, if I 
were able, to describe its beauty and its symmetry, or to show 
the use of pleas, and rejoinders, and surrejoinders, and re- 
butters, and traverses, and demurrers, which the skillful 
players in the legal game of chess, play out like pawns on 
the chess board, before they bring forward the pieces by 
which they are eventually to win. 

When I think of the power of old associations, and re- 
member that our meeting is not limited to those of our 
own number, I know not how far it is safe to confess the 
part which this Bar took in the blow that struck down that 
ancient system. A report prepared by their direction, upon 
the subject, is still extant, which found its way into the 



1(3 

newspapers of the clay, and was nearly coincident with the 
act of the legislature of 183G, wliich declared that "in 
every civil action hereafter to be tried — all matters of law 
or fact in defence of such action, may be given in evidence 
under the general issue, and no other plea in bar shall be 
pleaded." 

But whatever were the motives for such a reform, whether 
because its advocates knew too much or too little, to stand 
by a system which had engaged the keenest minds and 
sharpest intellects at the English Bar, it had, at least, the 
apology of being designed to simplify and render intelligi- 
ble the proceedings of our courts, and to do something to 
save, if possible, a sacrifice of justice to the mysteries of 
technicality. 

But it is true, that even after this, the language of law 
papers was not reduced to the homely vernacular of the 
nursery or the work shop, and a man was, sometimes, shocked 
to learn that he had been guilty of " trover and conversion " 
in claiming property that he owned, or to sec some hasty 
expression of contempt for a blackguard, spread out into a 
volume by colloquia and innuendos, and exaggerated exple- 
tives, under the verbiage of which, the charge itself, like 
FalstafF in the buck basket, was well nigh smothered by 
the foul and oflPensive coverino-s beneath which it was brouo'ht 
into court. 

But, after all, these were harmless excrescences upon a 
system which had become venerable by age, and respectable 
by the ends at which it aimed, and the results which it or- 
dinarily attained. And when, therefore, it was proposed to 
efface old lines, and simplify what in the nature of things 
must be more or less complex, by merely giving it a new 
name, there were those who innocently doubted whether 
there was much of progress in such a reform. 

There are those who, even now, can no more readily dis- 
cern the subject of a suitor's complaint, because he is told 
it is a " tort," than if it had been spoken of as " Trespass," 



17 

or "Case," in tlie brief, terse, customary language in wliicli, 
until lately, the Plaintiff told tlie tale of the wrongs for 
which he sought redress. 

One of the prominent events in the legal history of Mas- 
sachusetts during the period of which I am speaking, Avas 
the revision of her statutes. 

The arduous and responsible duty of rendering a mass 
of intricate and often conflicting legislation, simple and in- 
telligible, was confided to a commission whose character and 
capacity were a guaranty that the work should be faithfully 
and ably dene. 

But thoroughly, and as w^as fondly believed, completely, 
as tliis revision was accomplished, the love of change, and 
spirit of innovation, prompted by the new and growing- 
wants of a community with such varied interests, had swelled 
to a volume of near a thousand pages^, and demanded a new 
revision, even while one of the former commissions yet sur- 
vived. That work is in able hands,''' and if it shall be accom- 
plished as successfully as the one which it is to supersede, 
posterity will owe a debt of gratitude to their labors, like 
that wdiich it has paid to the memory of those who preceded 
them in that important field. 

The last of that number has just gone down to an hon- 
ored grave in a ripe old age, bearing with him the veneration 
and respect of an entire community. 

The place upon the bench has long since been filled which 
he graced and honored in the vigor of his manhood, and 
the world will go on as if he had never taken a prominent 
part in its affairs. But in giving an outline of the legal 
and judicial history of Massachusetts for the last quarter of 
a century, the record would be incomplete that did not pre- 
sent, prominently, among those whose character and labors 
as jurists have distinguished it, the name of Charles 
Jackson. 

'■■' The commission consists of lion. Judge Parker, of the Dane Law School, 
lion. Mr. lUchmond of Adanas, and Hon. Judge Richardt-uu, of Lowell. 



18 

The truest annals, perhaps, of the progress of the law are 
to be found in the reported decisions of our courts. 

So far as our own Commonwealth is concerned, though 
one of the earliest to make provision for their publication, 
the work is of a comparatively recent date. 

The earliest volume of our reports contains the decisions 
of the year 1804:. Sixty-two more volumes have been pub- 
lished since that time, thirty-five of which have been given 
to the public, within the period of which I am speaking, 
and materials for other volumes are nearly or quite ready 
for the press. 

Of the extent, variety and accuracy of the learning they 
contain, the vast amount of labor and untiring industry 
they evince, and of the research and scope of thought neces- 
sary to their production, I need not, even if I had time, 
speak at large before such an audience. 

If the legislation of a state furnishes one of the best 
means of studying its political history, the reported decisions 
of its courts serve as, perhaps, a scarcely less accurate crite- 
rion of the slow, impalpable, yet certain progress which its 
unwritten law is making, to keep pace with the sentiments, 
and wants, and character of its people. Principles which at 
one period are little more than hinted at, or shadowed forth 
with hesitation by its judges, become, in time, elementary in 
their character, and their soundness no one presumes to 
question. 

These may not partake of the fluctuation of public sen- 
timent, but I greatly mistake, or we shall perceive as we 
glance at the contents of these successive volumes, that 
there are classes of topics prevalent at one time, which 
nearly subside at otliers, and that great issues which engage 
the public attention at one period, are scarcely heard of at 
another. 

That these currents in the popular mind should influence, 
often unconsciously, the judicial mind of the state, is but 
saying what so many believe, that those who are to act as 



19 

interpreters of the law, should take part in the actual ad- 
ministration of it. Shut up the wisest man in a cloister, 
and surround him only with the records of the past, and 
let no whisper of what is passing in the great Avorld around 
him, reach his ear, and though you make him as learned 
and impartial as Justice herself, you make him at best but 
a monk in ermine. 

It has seemed to me that there was something like a 
public pulse in the law, which accurate observers, situated 
as our courts are, often feel without knowing how its move- 
ments reach their consciousness, and if it acts upon courts 
in modifying old dogmas, or infusing new elements of life 
into the body of our jurisprudence, it is, in its turn, acted 
upon by the direction it receives from the calm judgment, 
the trained sagacity, and authoritative opinions of their 
Judges. 

In view, therefore, of what we have read of the changes 
through which our law is passing, while many a rough, uo-ly 
excrescence has been removed, that marred its symmetry and 
beauty, we find new blood infused into its system, and new 
vigor vitalizing its action. 

There are one or two legislative reforms, which I ought 
not to pass over in silence. 

Much as I idolize the stability and consistency of popular 
favor, I am obliged to confess, in regard to one of these re- 
forms, that from early prejudice, or other infirmity of judg- 
ment, I have at times supposed that the Judges of our Su- 
preme Courts, taken collectively, were better able to deter- 
mine the constitutionality of a law, than a man drawn for 
the first time from the farm, or the shop, to serve on the 
panel of a Common Pleas Jury. 

But as our law makers of 1855 thought otherwise, I am 
bound to yield this traditionary impression to their superior 
wisdom, and set it down to the progress of the last quarter 
of a century, unless the example of one branch of the pres- 
ent legislature should tend to restore some of the old fash- 
ioned notions of our fathers. 



20 

As we cast our eyes along* the liistory of our race, it is 
refresliiiig to see tlie part which chivalry has taken in im- 
proving the social and moral condition. of mankind. 

Fortunately, the spirit is not dead, and most fortunately, 
it still delights in tilting its lance in the cause of the op- 
pressed of the fairer, I hardly dare say, weaker sex. 

And that, too, has been at work even in the field of legal 
reform. 

We all remember what a cry, as of captive maidens, and 
enslaved matrons, went up from convention after convention 
a few years since. 

It could not fail to arouse the spirit of chivalry, sometimes 
dormant, but never dead. 

It was found tliat tlie a^e had ijot in advance of such old 
times, as " I'cmes covert," " 3Iarital rights," and the like. 
So far as the sexes were concerned, " Duties " became a 
noun of masculine gender alone. Yv^hile " Mights " put on 
the feminine garb, or at least, the " bloomer" part of it, to 
be seen and read of all men. 

And nobly and effectually was the work accomplished. It 
has relieved young men from temptation, and many a poor 
lawyer who might have sold himself for a certain price, pay- 
able in lands and stocks, v/ill be put upon his guard in mak- 
ing heart investments hereafter. 

It may be no serious obstacle in the way of love and ro- 
mance, but when he remembers that all that a woman hath, 
at the time of her marriage, remains " her sole and separate 
property," " not subject to the disposal of her husband," 
and what is better, not " liable for his debts," he may, like 
a class of modern politicians, be led to calculate the " value 
of the union." 

But the chief glory of this chivalrous measure consists in 
the singleness into which marital rights have resolved them- 
selves. 

That old fashioned community of interests, a community 
of pursuits, which made it a kind of pleasant copartnership 



21 

to earn together a little competency, for what even now is 
common property — their children — has become absolute by 
law. 

Now the married woman, happily relieved from any occa- 
sion of being another's help meet, "may carry on," in the lan- 
guage of the Statute, " any trade or business, and perform 
any labors or services, on her own soU account," and her earn- 
ings shall be " her sole and separate property."* 

This is the last chapter in the history of legal reform. 
What is to be the next, I must leave for my successor to 
record. • 

But, if in its progress, we are to listen upon the Sabbath 
to the devotions of some St. Agnes, or, upon a week day, to 
the learning and eloquence of a Portia at the Bar, or a No- 
vella of Bologna in the Law Lecture Hoom, or see sickness 
robbed of half its pain and most of its terror, by the dulcet 
tones and delicate little doses with which beauty shall battle 
with disease, those who may stand, at the end of another 
quarter of a century, where we do now, may, as they look 
back upon our unfortunate condition, borrow the measure of 
one of England's poets, if they do not his language, when 
they exclaim, as they doubtless then will, 

Law's thorny field was but a tangled wild, 

Till woman tilled it, wlien it bloomed and smiled. 

When I turn to the recollections of the last twenty-five 
years which are awakened by the history of our own Bar, and 
our own County, while there is much over which to rejoice, 
there is not a little over which an old man may almost be 
justified in dropping a tear. 

Shall I speak of the social changes in the habits and in- 
tercourse of the Bar, which have grown up within that period? 

I know I am entering upon perilous ground. To doubt 
that we live in an age of progress, to hint that railroads 
and telegraphs are not of unmingled and unmeasured good 

» Stat. 1855, c. 301. 



22 

to man, or to dare to think, much more to say, that the pres- 
ent does not outstrip the past in every thing that goes to 
make up life, will sound, I am aware, like the very key note 
of " Fogyism " itself. 

But there are a few, sorry am I they are so few ; who can 
go back with me to our courts, our *' court weeks," and our 
Bar gatherings, before the period of which I am speaking. 

What a contrast with the present ! "Court week" was then 
literally what it was called, instead of reaching in one con- 
tinued session, as now, from the earliest harvest home, round 
to the latest planting season, and the forty-one days of term 
time of the C. C. Pleas in 1831, grown to one hundred and 
forty-two in 1854. And those who came to court, did so to 
some good purpose. It was for the business and relaxation 
of a week, instead of whisking in upon a rail in the morn- 
ing, to look at the list on the clerk's desk, like the numbers 
in the managers' report of an old fashioned lottery drawing, 
and to guess how many weeks it will be before he must go 
through the same interesting process again, and then home 
by the next train before nightfall. 

Oh the " dies fasti !" when, within the charmed circle of 
the Bar, greetings were exchanged, groups were gathered, 
and dignity unbent. But it was the evenings, those " nodes 
amhrosiance " of court weeks, alas ! with those who enlivened 
them, now only among the things that are passed — that told 
the strongest upon the life of the lawyer of that day. 

Could the parlors of the two or three boarding houses 
where they congregated, repeat the wit, and re-echo the 
laugh, and tell of the jokes and humor in which even grave 
judges sometimes shared, after the duties of the day were 
over, we might, as they did, gather up a store of pleasant 
memories to serve as bright new coinage, for the small change 
of social life and convivial intercourse. 

And why should I speak, unless it is to sigh over them, of 
those other social gatherings, where the Muse oft times sat 
down with us at the festive board, and the best of fellows, 



23 

the best of lawyers, and some of them, afterwards, the best 
of judges, poured forth the best of poems and the best of 
"jokes into the ears of the best and kindliest of critics? 

Those days are indeed gone by — " Qualis eram nou sum." 
And though I would not go back to the days of the old stage 
coaches, and the one horse wagon, as the means of reaching 
justice, or throw a scruple's weight in the way of Temper- 
ance, I have sometimes tliought it could do no harm if we 
should, sometimes, come together as if we were really social 
beings, and indulge, if no further, in listening to the tra- 
ditions of days when at the firesides of Mrs. Blake and Miss 
Stearns, and around Stockwell's well spread table, there was 
sparkling of wit and the outgushing of warm hearts and 
cheerful spirits. 

Pardon this local allusion, and set it down to the garrulity 
of a busy memory teeming with the little incidents of which 
so much of humble life is made up. 

As I recal the history of the last twenty-five years of this 
County, I cannot forbear alluding to the condition of our 
County buildings. 

The ugly old stone prison that stood hard by here, has 
disappeared. The inadequate accommodations furnished by 
the court house then and still standing, for the rapidly in- 
creasing business and population of the County, have been 
amply supplied by the structure in which we are assembled. 
It is alike a monument to the taste, the forecast, and the in- 
dependence of a Board, who, though dependent upon a popu- 
lar vote for their election, did not hesitate to obey the call 
of duty. 

They acted for the County as it was, as it is, and, may we 
not hope, as it will he, for a century to come, the prosperous, 
thriving, independent, united community, which no true son 
of hers ever blushed to call his home, or failed to feel that 
her fame and her honor were a part of his own best her- 
itage. 



24 

As we revert, again, to the record of our Courts, we find 
at the commencement of the period to which I am limited, 
four Judges upon the Boncli of the Supreme Court.* 

One only of that number — " serus in coelum redeat" — now 
remains at his post of duty. Two sleep among the lionored 
dead. Putnam, the able commercial lawyer and upriglit 
judge, the courteous gentleman, and the companion of ever 
ready and kindly sympathies, after a retirement from the 
bench of several years, was the first to pass away. 

The last year has witnessed the departure of the other^f 
so long and so worthily associated with the first. 

A few months since, I found him, of an evening, sitting 
in his study, and with an eye undimmed by age, reading 
Plato, to ascertain, as he said, vv^hat advances had been made 
in modern times in the science of morals and politics, and 
how mucli the world was indebted for its present condition, 
to the revelations of the Christian Religion. And as I 
thought of him as the profound lawyer to whose eye even 
the subtlest pages of the blacic letter folio were luminous 
and clear, and sat and listened to his cheerful, earnest con- 
versation, in which the simple dignity of profound thought, 
was mingled with the pleasant recollections of the past, 
and the hopeful anticipations of the future, I could not but 
envy the man who had brought, out of the conflicts of so 
long a life, so rich a treasure of duties, consciously performed, 
of esteem and affection so worthily won, and of reputation 
for purity and uprightness of heart, and singleness of pur- 
pose, so universally accorded to him as a judge, which gave 
grace and dignity to his profound learning and impartial 
judgment. 

Within the period spoken of, nine others have been called 
to fill places upon that Bench, one only of whom has gone 
to his reward.| And long may it be ere delicacy towards 

" Vid Appendix, A. 
■j" Judge Wilde died June 22, 1855, Vid Appendix, A. 
I Judge Hubbard died Dec. 24, 1847, at the age of 62. 



25 

the living, shall no longer restrain the utterance of what 
feeling might, otherwise, dictate. 

Of the four judges'-' of tfie then Court of Common Pleas, 
three have gone to join the generation that preceded them. 
Chief Justice Ward was known to us only hy the reputation 
for learning and integrity which he had acquired in other 
parts of the Commonwealth.! 

Judge Strong was one of our own number. J *A few of us 
remember him before he had been elevated to that place, 
when he lionorably filled a seat in Congress, and was called 
thence to a vacancy upon the Bench. 

With a good legal mind, and respectable attainments in 
his profession, he brought much experience in the practical 
affairs of life, to the business of the Court, and did much 
to elevate and sustain its character. He won tlie confidence 
of all, by liis uprightness as a judge, and the diligence and 
fidelity with which ho performed his duties. He retired 
from the Bench while his powers were unbroken, but found 
the evening of his days clouded by infirmity and disease, 
with which he struggled without complaint, and bore up 
against them with the dignity and cheerfulness of a good 
man. 

The last of the three has passed away from the shades of 
of retirement, within which he had lived for many years, 
within the last few months.^ 

Though wanting many of the qualities of a perfect judge, 

' Vid Appendix, B. 

t Ch. J. AVard held the office from 1821 till 1841; He died Oct. 7, 18i7, at 
the age of 84. 

I Judge Strong was a native of Amherst, and the son of Hon. Simeon 
Strong, .Judge of the Supreme Court. He was graduated at Williams College 
in 1798. He was admitted to the bar in 1803, and commenced business in 
Athol, and after remaining there about three years removed to Westminster. 
From 1812 to 1814 he was a member of the Senate, and again in 1844. In 
1818 he was appointed Judge of C. C. Pleas, and retained the office till 1813. 
He removed to Leominster after his appointment to the Bench, and resided 
there till his death in 1850, at the age of 70. 

§ Hon. Judge Cummings, who died March 30, IS'iB, aged G9. 



26 

there never was a more upright and honest man, or a more 
sincere lover of truth and justice, than he. What he lacked 
was due to his temperament alone. Every one felt that his 
instincts were all right, and that his judgment was guided 
by an honest purpose and high attainments in learning. 

Never suspecting fraud in his own guileless nature, no one 
could he a more uncompromising foe to trick or chicanery 
when once detected. The sod does not rest on a kinder 
heart than that which once animated the manly form of 
Judge CUMMINGS. 

Of the otliers who have been members of this Court with- 
in our period, I have not time to speak, though three of 
their number liave been added to the starred names that are 
so rapidly swelling the catalogue of the eminent men that 
have departed from our midst.* And the last mail brings 
the sad intelligence of another vacant seat and another 
stricken household. Sudden, fearfully sudden, has been the 
blow that has stricken down one whom we had fondly hoped 
to meet here this evening, and turned our joy into sadness. 
Greater and more brilliant men may have fallen, but a 
truer heart, a more upright judge, or a man of more hon" 
orable feelings or guileless life, is not left to commemorate or 
record the virtues of the dead. 

The Court has, from various causes, been prolific in names. 
Twenty- two different Judges have held seats upon that Bench 
within the last twenty-five years. One of these causes? 
happily is, in part at least, removed. 

As I contemplate the fact, that more than a thousand 
million of dollars of the wealth of the citizens of this 
commonwealth, owes no little of its security and value to a 
wise and impartial administration of her laws, I think, 
with anything but feelings of pride, of that penny-wise 

«Ch. J. Wells died June 23, 18oi, aged 63. Judge Ward died May 29, 
1848, aged 39. Judge Colby died Feb. 22, 18.33, aged 44. He was Dist. 
Atty. of the Soutlieru District after his resignation of the place of Judge. 
Judge Byington had accepted our invitation and was expecting to be present 
on the occasion of this address, when he was sudilenly stricken down by 
•disease. 



27 

policy wliicli lias, at times, ground down her judges to rates 
of compensation below what some of her private corpora- 
tions pay for looking after the running of their rail cars, or 
the speed of their spinning jennies. 

The Attorney and Solicitor General of twenty-five years 
ago," have passed away. Eminent in their dfiy, they were 
long in office, and formed a connecting link between the 
class of lawyers who entered the Bar soon after the revolu- 
tion, and our own times. Belonging to no particular local- 
ity, their history, their services, and their reputation, are 
rather the property of the whole Commonwealth, than the 
subjects of extended notice while treating of a single County. 

Of the Judges of Probate, four have held office within 
our prescribed period. f With the presence of three of that 
number we are favored this evening, including him who 
presides over its proceedings. 

The other| long stood as a kind of connecting link between 
the modern bar and the ante-revolutionary days, many of v.'hose 
actors he had personally known. 

After having held the place of County Attorney, he 
presided for more than an entire generation, with great 
approbation, over the duties of a Court which requires 
learning, patience, diligence, and a ready sympathy, and in 
1840, at the ripe age of eighty-two, nearly sixty years from 
his admission to the bar, his name, like an old familiar 
land-mark, ceased to hold its accustomed place at the head 
of the lawyers of the then town of Worcester. 

Four, during that period, have held the place of District 
or County Attorney, and another has recently been added 
to the list.§ Of these, including the last, four belonged to 
the Bar of this County. 

Of one of these it may not be improper for one who 

'■Hon. Perez Morton, Attorney General and lion. Daniel DaYis, Solicitor 
General. ^Ir. Morton was Attorney General from ISIO to 1S32. He died 
Oct. 14, 1837, at the age of 87, in Dorchester. 

fVid Appendix, C. | .Judge Paine. § Vid Appendix, D. 



28 

learn eil by experience to appreciate his efforts in that office, 
to say that it was sometimes difficult for an antagonist to 
determine whether he was the most effectually suhdued by 
his adroitness or his courtesy. 

Another, though in brief possession of the office, I am 
unwilling to pass over in silence, though he was scarcely 
known beyond the limits of tliis Bar/-' 

He came into the profession mature in years, and strong 
in native powers, but already the doomed victim of disease. 
He struggled with manly resolution and unshrinking forti- 
tude, against a malady that would have crushed the hopes 
and spirits of an inferior nature, and won for himself, as a 
public officer, an approbation and respect which harmonized 
with the esteem in which he was held as a companion and 
a friend. 

His fate was but a new illustration of the bright mark 
at which death loves to aim his fatal shaft. 

Passing from this office to that of the principal Clerk of 
the Courts, we find that four have been incumbents of the 
place.f Here, too, I may not properly speak of but one of 
that number. 

But in recalling the name of Kendall, the modest worth, 
the amiable virtues, the scholarly tastes, and the unblem- 
ished purity which characterised his life, at once rise before 
the mind. 

He had been a well read lawyer, though little fitted, by 
taste, for the rougher passages of the profession. 

In Congress he belonged to a school of politicians — God 
grant it may not become quite obsolete — who, if they spoke, 
said what they meant, and voted for the right because it 
was the right. 

He had doubtless been a greater man, and more eminent 
in his profession, had he felt the goadings of poverty, or 

- B. F. Newton. 
■j-Hon. Abijah Bigelow, Hon. Jos. G. Kendall, Charles W. Hartshorn and 
Jo3. Mason, Esquires. 



29 

the calls upon a liasbaud, or a father's instincts for exertion. 
But the world has little to foroivc when it comes to take 
the account of his life, and sees the preponderance of the 
good he accomplished. 

Four have successively had in charge the executive duties 
of the County, in the office of Sheriff,''' and though two only 
of these were originally of the Bar, their connection with 
the Courts calls for a passing notice. 

One only of these can be alluded to on this occasion. Of 
sound judgment, great practical knowledge, unbending in- 
tegrity, and with a heart kind as that of a woman, he knew 
nothing like fear, and went right on, wherever the path of 
duty led. He knew neither friend nor foe, in his judgment 
of what was just, and when, to accomplish some party ar- 
rangement, it became necessary to sacrifice a model officer, 
lie retired with dignity to private life, where he needed no 
extrinsic influence to command respect, and there and thus 
he died. 

To speak of the Bar individually, would obviously exceed 
the limits of my time or your indulgence. 

T find upon the List of Counsellors in 1830, the names 
of fifty-six, of Attorneys at the Supreme Court, sixteen, and of 
Attorneys at the C. C. Pleas the names of fourteen, mak- 
ing eighty-six in the whole. These were scattered in une- 
qual numbers through thirty-five of the then fifty-four towns 
in the County. 

Of that number, forty-five have died. Eighteen who are 
now living, have left the County, others have retired from 
professional life, till ten only now remain in practice at the 
Bar. 

Within the period mentioned, from one hundred and forty 
to one hundred and fifty have been, at different times, or 
now are, members of the Bar, in addition to the eighty-six 
first mentioned. About ninety-five of these still remain 
connected with the profession in the County. Sixteen of the 

*• Vid Appendix, E. 



30 

towns ill which lawyers were settled in 1830, no longer etijoy 
the lio-ht of such luminaries of their own. Death, or an ex- 
hausted treasury, has driven them from the former scenes of 
their struggles. 

These few statistics show the rapid changes that are con- 
stantly taking place in the condition of our Bar. A profes- 
sional life is proverbially brief, and a young aspirant for its 
honors, has hardly got through wishing Providence to pro- 
vide for the seniors that stand between him and success, be- 
fore he finds himself equally a subject of the prayers of his 
juniors, who crowd and jostle him in his course, before he 
has hardly had time to measure his own speed. 

For this, or some other reason, the prizes that are won, 
are few compared with the whole number that enter the 
arena to compete for them. 

When we read of the receipts of some of the eminent 
English Barristers, or of some of the Bar of our own country, 
we make a false estimate of the true amount of success that 
is achieved by the profession at large. 

Forced by the position in which they are placed, to assume 
the externals of competency, the public at large are little 
aware how often this gives a false impression as to profes- 
sional success. 

I am not disposed to complain, nor do I believe our own 
Bar has not been, when compared with others, reasonably 
successful and prosperous. But the statistics of the Probate 
office tell rather a sad tale. 

Of the estates of forty-five of the lawyers of the County 
living in 1830, nine had no inventories returned, though 
these embraced some who had been tlie most successful. 
Twelve were either never settled at all, or settled in some 
other jurisdiction. Twenty had inventories or accounts ren- 
dered, only one of wdiich exceeded fifty thousand dollars, and 
a very small portion only, if any, of that was the fruits of 
professional labor. Nine who had property, amounted to 
less than five thousand dollars each, and four of them aver- 



31 

aged loss than seventy-six dollars each, while six of the es- 
tates were insolvent, as shown by the record, and there is 
good reason to know that of the twelve estates not settled 
here, at least seven were insolvent, making more than one 
in four of the whole forty-five estates, that were altogether 
insolvent. 

It is certainly with very little pleasure that I refer to 
these results^ and it is with far more grateful feelings, that 
I turn to what the Bar of Worcester County has achieved 
in the way of i-eputation. 

I will not, however, in so doing, refer to the suggestions 
of my own partial judgment, hut appeal to the recorded 
opinions of others, in the fact, that of those who are or have 
been living within the period of which I am speaking, three 
have held the place of Chief Magistrate, three that of Judge 
of the Supreme Court, and that a place upon that Bench was 
tendered to two others of the number.* Four have been 
Judges of the C. C. Pleas. One for many years a Senator, 
and ten have been members of the House of Kepresentatives 
in Congress, and one has been a Foreign Minister of the 
United States.f 

Happy should I be, to speak in detail of most of those 
who once filled these places. As I run my eye along the cat- 
alogue of their names, their forms rise in fancy before me, 
and they seem to stand among us again, each in his own 
marked and well remembered traits of person and character. 

The Hastings — father and' sons. — The first, without the 
graces of oratory, was for many years a formidable antago- 
nist before a Jury, and before the Court exerted an influence 
by his very respectable acquirements as a lawyer, and his 
ability as a reasoner. 

The eldest of the sons was perhaps a better lawyer. He 
possessed much ready wit, was a man of honorable and agree- 
able qualities, and died in the midst of his usefulness and 

"Hon. John Davis, and Hon. Charles Allen. 

jHon. George Folsom, Minister at the Hague, from '49 to '63. 



32 

public honors, ere age had saddened life ^ith its bitter ex- 
periences. 

Tufts — the man whom his friends knew better than the 
world did, and saw struggling, under the stimulus of an 
honorable ambition, to gain for himself a rank in his pro- 
fession, while lurking disease was wasting the powers of his 
body, and consigning him to an early grave. 

He lived long enough to enjoy a share of the public hon- 
ors of the day, and won the public confidence, as he had 
done the esteem and affection of his associates. 

James — then of Barre, venerable in years, courteous in 
his bearing, modest and reserved in his temperament, pass- 
ing through a long life without spot or blemish upon his 
modest fame. 

Goodwin — whose antiquarian and scholarly taste was but 
partially reconciled to the drudgery of the profession he had 
adopted. 

Foster — the high souled, pure hearted scholar and gentle- 
man, whose chief fault was an undue self-distrust of powers 
of a high order, and unfortunately for the full develop- 
ment of which, he was above that necessity which is the 
stern school-master of so many in that profession, which he 
early abandoned. 

Brooks — who for many years held a leading rank among 
the lawyers of this and a neighboring county, with a mind 
of great acuteness, well stored with legal principles, and 
whose earnestness and fidelity in the cause of his client, was 
acknowledged by all who witnessed his efforts before the 
Jury or the Court. 

Taft — who, though bred to the profession, was able to 
indulge a taste for rural pleasures and pursuits, and escape 
the drudgery of the law, but was always a genial om pa n- 
ion at the bar, and was often honored by the expression of 
public confidence, by being called to offices of trust and 
honor. 

Nor would I pass over in silence the name of Stbbbins. 



He made no mark in his profession hj his eloquence or learn- 
ing, but he honored it by his incorruptible integrity, and 
though he laid aside its duties for a more congenial employ- 
ment, he retained through life that high estimation of a true 
lawyer's character, which he had illustrated during the few 
years he was connected with it. 

And there are names which start up spontaneously, at the 
very mention of a social hour. 

Lincoln — the lawyer, profound and learned for his years, 
the diligent student with his ever ready fancy, and playful 
wit, the genial companion and the man of taste and letters. 
If he ever did injustice to himself, he never was false to his 
faith, or disloyal to his friendship. 

Baldwin — whose sad and early fate was the only thing 
that ever brought pain in the associations which his name 
awakens. Wedded to a profession for which he had no sym- 
pathy, his happiest day was when he bade it adieu for a po- 
sition far more congenial to his taste. 

His like we shall never look upon again. His better qual- 
ities were hest known to those who knew him best, since that 
never-failing flow of humor and good feeling which he al- 
ways displayed, almost obscured, at times, the varied learn- 
ing which he really possessed. 

But long ere this, another familiar form must have arisen 
in fancy before your vision.'- For forty years he filled a place 
at the Bar, and saw one generation after another pass away 
in its rapid changes. His was a store of abstract legal prin- 
ciples, gathered by years of patient diligence in study, and 
his processes of reasoning, formed upon the models of the 
school men, made him a formidable antagonist, where indus- 
try in preparation, and the application of keen logic, could 
be brought to the encounter. 

We miss him in our daily walks, we miss him at our so- 
cial gatherings, and the last of his old associates will have 
passed aw^ay before the image of his striking figure shall 

t Samuel M. Burnside, Esq, 



34 

cease, as fancy peoples the scene, to come and linger around 
a spot with whose duties so much of his long life was con- 
nected. 

One other who had held the place of County Attorney, and 
at the commencement of the period of which I am speaking, 
was filling the responsible post of Secretary of the Common- 
wealth, since that time, came back to enjoy a few years of 
retirement, and then to follow where so many of his com- 
panions and associates had gone before him/-'-' 

The field of literature was always more congenial to his 
taste, than the agitations and excitements of the profession, 
and neither his health nor his taste allowed of his again en- 
gaging in these, after giving up public life, and few of those 
who now fill these seats, know from personal observation, 
how to measure his talents- or his worth. 

But I am admonished that if ever anything like a sketch 
of the members of this Bar, who, within the last twenty-five 
years, have laid off" the harness of life's toils and duties, is 
to be given to the public, the present occasion is altogether 
too brief to admit of its being done here. 

And yet I should fail to meet your demands, or those of 
my own feelings, if I passed over in silence the memory of 
one who so long honored and adorned this Bar.f 

This was not however, the only sphere in which he achieved 
distinguished success. His fame was a national one. But 
I leave for others to do that justice to his character as a 
statesman, which, too often, comes only when the jealousies 
and rivalries of party have been buried in the grave. 

Of his characteristics in his professional career, I could 
dwell upon what a connection in business, and a long person- 
al association, impressed upon my mind. 

If he was not what may be called a technical lawyer, 
learned in the books, he had that sound judgment, clear ap- 

•■'Hon. Edward D. Bangs was Secretary of State from 182-t to 1836. He 
died April 2, 1838. He was a son of Judge Bangs, of the C. C. P. 
t Hon. John Davis. 



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35 

prehension, and almost infallible common sense, that enabled 
him to detect and apply the principle wliich was to guide in 
the decision of a question, however intricate, and to trace 
analogies and perceive distinctions, often subtle, the want of 
which so often misleads the most learned lawyer. 

And having settled in the elaboration of his own mind, 
what the law, in any case submitted to him, should be, he 
was generally able, by diligent research, to bring to the 
support of his own conclusion, authority to sustain the posi- 
tion he sought to maintain. 

I do not believe any court ever listened to an argument 
from him, without being enlightened, if not convinced. It 
was not the flippant citation of cases from digests, but the 
clear, simple statement of sound philosophy, mingled with a 
respectable and creditable amount of learning, judiciously 
and aptly applied. 

Such a mind would liave been invaluable upon the Bench, 
but a well founded apprehension of a want of physical 
ability to sustain its burdens, deterred him from entertain- 
ing a proposition to accept the place. 

Of his efforts before a Jury, I hardly need to speak, where 
they have been so often witnessed. 

There was an earnestness, an apparent candor and sin- 
cerity in his manner, a clearness of statement, a singleness 
of purpose, that never sacrificed the success of a cause to 
the graces or display of oratory, and, withal, a complete 
command of all the bearings of his case, that enabled him 
to carry it forward with a poAver wliich no opposing counsel 
ever failed to appreciate and respect, if he did not fear. 

As a wise counsellor, an agreeable and entertaining com- 
panion, whose conversation always instructed, and whose 
playful kindness always delighted, no man ever went through 
the tangled wilderness of political and professional life, and 
left more for friendship to remember, and less to forget, 
than he, whose almost speaking countenance, in marble, 
greets us in our solitary walks in yonder cemetery. 



36 

I have spoken of the past, hut what am I to say of the 
future of this Bar and their profession. 

Of those whose names now swell its numhers, how few 
will he left at the end of another quarter of a century, to 
recal those of us who take part in the festivities of this 
evening. 

As I contemplate the past, and address myself to those 
who are hereafter to occupy this Bench and fill these seats, 
I cannot better express the deep sensibility which the thought 
awakens, than borrowing the language of that. comprehen- 
sive prayer, " Sicut patribus, sic vobis." 

We have seen enough of change in our own day, to read 
change and progress in the shadowy history of the future. 

In the growing and multiplying relations of business and 
social life, new questions of interest and moment will, doubt- 
less, arise, in the determination of which the same process 
of keen analysis, broad speculation, and far-reaching fore- 
sight, must be brought into exercise, by which the questions 
of this and a former generation have been mastered, and 
the imperishable fabric of the common law built up. 

To prepare men for a work like this, requires an education 
and a training which can only be acquired in the school of 
the Bar 

Little does the world, at large, know of the part which 
an able and educated Bar plays in the business of self-gov- 
ernment, in a free state. 

It is not merely in giving form and direction to tlie leg- 
islation of such a state, but what affects more nearly the 
enjoyment of personal protection, and the security of per- 
sonal rights, it puts the power of the law within the reach 
of every citizen. 

There is a spirit of power and injustice warring upon 
unprotected weakness, now, as much as in the days of chiv- 
alry of old, though it may not manifest itself by such open 
deeds of oppression. 

The arena, moreover, in which battle is to bo made for 



87 

the right, is no longer the listed field, but the Hfill of Jus- 
tice, Avhere, though the champion be not indeed mailed in 
armor, as true faith, as fearless courage, and as devoted 
fidelity are demanded, as ever signalized a liichard or a 
Bayard. 

And say what men may of tlie |>rofession, th.ere is in that 
assurance which every body feels in liaving the arm of a 
fearless advocate to rest upon, that which half disarms op- 
pression of its power, and gives to the feeblest the strength 
of a trained and disciplined champion. 

In the facility, however, wi h which men now force their 
way into the profession, there is no little danger that there 
may be found those whose character may gradually undermine 
this public confidence in professional faith and honor. 

In view of contingences like these, I can hardly exagger- 
ate the importance of cultivating in the profession that 
feeling of self-respect, which shall preserve it from grovelling 
motives and unworthy condtict. The science they profess 
is a noble one, and its investigation and pursuit demand the 
highest powers of well trained and honorable minds. 

But I have already taxed your indulgence too severely, 
to dwell any longer upon the inseparable connection there 
is between the character of a people's laws and the growth, 
happiness and prosperity of a nation, and I hasten to close 
this imperfect presentation of our subject, in the language 
of another. 

" At what time Law commenced, we inquire not — whether 
its origin was in any respect supernatural or not, is of no 
moment at present, but certainly it was when human pas- 
sions were seen tearing the weak and defenceless, when in- 
dividual greed, individual lust, individual hate, and most 
cruel and perilous of all, individual revenge, ranged like 
beasts of the forest amid a Hock, that Law unbared her 
beautiful brow, and bade tliem all cower beneath the eye of 
reason." 



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